Home » Foreign Forces » Opinion: USS Lassen’s Transit of Subi Reef Was Not So ‘Innocent’


Opinion: USS Lassen’s Transit of Subi Reef Was Not So ‘Innocent’

USS Lassen (DDG-82) is underway in the Philippine Sea in 2013. US Navy Photo

USS Lassen (DDG-82) is underway in the Philippine Sea in 2013. US Navy Photo

Much has been made about the recent transit of the USS Lassen (DDG-82) within 12 nautical miles of Subi Reef in the South China Sea. To review, that is because China has built an artificial island on top of Subi Reef, claims it as sovereign territory, and claims territorial rights to the seas around the reef.
It is important to note that Subi Reef is naturally a “low-tide elevation”; that is, it is only exposed to the atmosphere at low tide. In its natural state, before China built an artificial island on top of it, the reef was entirely submerged at high tide. Under international law, natural low-tide elevations do not have territorial waters associated with them. Building an artificial structure, including an island, on top of a low-tide elevation does not grant it additional territorial attributes: it is still a low-tide elevation under international law.

The United States has a longstanding program of challenging maritime claims that it believes are not consistent with international law, and conducts freedom of navigation (FON) operations to challenge those claims. The Center for Strategic and International Studies (CSIS) Asia Maritime Transparency Initiative (AMTI) maintains a good primer on FON operations, and there are a number of good articles on the subject of Subi Reef and the Lassen transit that discuss those issues.

Of concern, however, is the characterization of this transit as being one of “innocent passage.” Innocent passage is the right of any ship to transit the territorial waters of another nation, as long as it is “innocent”. For warships, that includes operating in a non-confrontational manner, such as not exercising or practicing weapons, conducting surveillance, launching or recovering aircraft, and so forth.

Chinese Subi Reef facilities in April 2015. Digital Globe Photo via The Diplomat

Chinese Subi Reef facilities in April 2015. Digital Globe Photo via The Diplomat

Innocent passage for a warship requires two things: non-confrontational behavior and transiting through the territorial waters of another nation. Innocent passage is not “innocent” if a warship exhibits prohibited, confrontational behavior, and it must, by definition, involve actually transiting recognized territorial waters. It is not necessary to recognize what country claims sovereignty of the waters, it is simply necessary that the waters are sovereign territorial waters of some nation under international law. In fact, China, Taiwan, the Philippines, and Vietnam all claim sovereignty of Subi Reef.

We have already seen that Subi Reef has no territorial waters associated with it, so by the logic of the “and” conjunction, innocent passage is not possible—not by Lassen, and not by any ship of any nation transiting within 12 nautical miles of Subi Reef. It does not matter if Lassen was operating in a non-confrontational manner or not; by definition, Lassen did not pass through any nation’s territorial waters and therefore could not be conducting an innocent passage. In fact, by operating in a non-confrontational manner it clouds the issue as to the actual nature of the transit. It would have been more effective if Lassen had exhibited at least some of the behaviors prohibited under international law for innocent passage to underscore that is not what she was doing.

To suggest that Lassen was conducting an innocent passage when she transited within 12 nautical miles of Subi Reef is to suggest that Subi Reef has territorial waters, which suggests that some nation maintains sovereign rights to those waters—not, I think, a message the U.S. Navy wants to send to the world.

  • Walter

    Exactly correct. Obfuscation of the issue with loose language is a big problem.

  • Curtis Conway

    Send the MAGTF through conducting flight ops. Make sure they fly over the island. To do otherwise is to validate their claim. Makes one wonder why we have not done it already, and our chief administrator is supposed to be a lawyer.

    • Tony

      Exactly!

  • Bush+Obama=Satans love child

    I hate how dumb people have become to defining actions & things like this so called innocent passage Lassen performed but is really what China conducted in Alaska. We own the Aleutian Islands where China doesn’t own the Subi Reef. Defining a radio controlled item a drone when it can’t operate without a man in the loop. Calling a semi automatic rifle an assault weapon. People just parrot what ignorant media spews into their minds.
    If we wanted to show China we don’t respect their claims we would have been inside of 12 miles while blazing radar & launching helos or some other military style action.

    • tra la la la la di da

      Yes, but then we would look like assholes, so probably best your opinions stay here and are not consider in actual military action.

      • sferrin

        Looks like daddy left the computer unattended again. Judas.

        • Doug Retter

          I hate when he does that! 😛

  • Tony

    The fact that China has not welcomed the “innocent passage” as tacit recognition of their sovereignty over the waters around Subi Reef is proof that they are not 10 feet tall after all. It seems to me that China missed a golden opportunity here.

    • Curtis Conway

      Definition of terms means something, particularly in the legal realm. We should NOT let this term be redefined like so many have been over the last six years. Pretty soon one will have to be ‘a law unto oneself’ because law, principle, and anything resembling traditional American conduct, will have left the stage. When do the adults return?

      • CELT the Deplorable

        In answer to your question – perhaps the adults will return January 20th, 2017.

  • sragsd0416

    CAPT Cowden makes some excellent points and is to be commended on bringing forth the fact that terminology is everything in cases where legality is challenged. Further discussing with the Chinese Navy Leadership the simple passage of a US Warship through International Waters was also a mistake, unless we are adopting a policy of discussing all such passages with said leadership. If all nations adopted positions such as China’s then Oil Platforms would be considered an Island and National Territory…

  • Ako Madamosiya 毛むくじゃら

    Subi Reef and Mischief Reef (another one with and an airfield being constructed) does not meet the 12 mile territorial limit. Scarborough Shoal is another gray area because technically China has no business being there. It stole it from the Philippines when both was suppose to withdraw at the same time during a standoff a couple of years ago and was brokered by the US. It reneged an agreement and sealed the Shoal’s entrance instead with behemoth Coast Guard ships and destroyers lurking in the background. Lassen should have passed by Fiery Cross instead (likely entitled to 12 mile limit), then now we’re talking.

  • Ako Madamosiya 毛むくじゃら

    Next time the US Navy should pass by Mischief Reef 1000 meters away from its shores and airfield and on its way back do a humanitarian assistance to the beleaguered Philippine Marines aboard BRP Sierra Madre (Ex-USS Harnett County) close by.

  • Marcd30319

    Translation – Since Subi Reef is not part of any country’s territory, what the USS Lassen did was not innocent passage but simply passage.

    • gunnerv1

      Or to recognize that it belongs to the PRC and then stick our proverbial Thumb in their Eye to bring it to the (worthless) United Nations attention.

      • Marcd30319

        That’s not what I said.

        • gunnerv1

          It may not be what you said, but it’s how it can be interpreted. I don’t really care that much anymore as I retired from the Navy in ’86 (21 years, 9 ships and 1 shore duty)

          • Marcd30319

            Thank you for your service, if not your comment.

  • Brendan Kruse

    The issue though, is that even if China did own the reef, we wouldn’t be doing anything wrong by conducting innocent passage inside what would be seen as the territorial limit.
    It seems to me that we should have launched and recovered aircraft to actually show that we did not recognize the waters as territorial. Instead, we did something which would be completely legal either way, pass right through …

  • Matthew Schilling

    I have been thinking this all along – didn’t the Lassen basically acknowledge Chinese territorial claims, where there ARE NONE? Was this just another case of Obama bowing?

  • John B. Morgen

    We should be sending more warships but in groups of squadrons into the said area, but conduct [normal sailing operations,] without making any declarations about our intent. Dropped the wording–“innocent passage”—just say passage inside international waters. However, we [MUST NOT] backdown from any challenge that the Chinese might present themselves—we must hold our ground.

  • Sinclair M Harris

    CAPT Cowden makes an important but overlooked point. The passage by LASSEN needs to be replicated by other nations to clearly demonstrate that building islands in the South China Sea does not constitute a legal claim as sovereign territory. While the US is not picking sides between nations over disputed claims, we should (and others as well) be on the side of the rule of law. And, as we all know, laws need to be backed by precedence and enforcement.

    • Secundius

      @ Sinclair M. Harris.

      Unless one of the Disputing Sides, SELL’s the USA an Above Sea Level Island. The USA, doesn’t Have ANY Legal Claim to ANYTHING in the South China Sea…

  • Bo

    BZ, CAPT Cowden! Coming from one of the SOF JAGs who helped plan the Iraqi GOPLAT seizures in March 2003, you are spot-on.

  • AncientSubHunter

    Thank you for the education, sir.

    I wonder what the origin is of the current use of the term “innocent.” Did the Navy use the term without properly defining it for the press? Did the press hear the word and decide to Google it and assume that it was an adjective and not a noun?

    It is embarrassing that the Chinese understood it definition during their recent “innocence” off Alaska. We should learn from them and quit being so afraid to “offend.”

    Besides, we had the entire Cold War to teach us that most other nations will only abide by “International Law” for expediency. However, our capacity for the learning the lessons history is always trying to teach remains bankrupt.

    The Putin’s of the world only understand power. And it is only that power that guarantees their serious presence at a negotiating/diplomatic table.

  • Seems like lawyer double speak. But by now making the “innocent passage” could that not be construed as recognizing the existence of a territorial claim? If not why even worry about the “passage”. Might be too much for a community organizer and law professor to comprehend. Maybe we should send a whole battle group through the area. Oh yea, we only have five carriers operational.

  • Secundius

    In a Interview aboard the Theodore Roosevelt, Commander Francis. Captain of the Lassen, came within 6 or 7 MILES of the Subi Reef. And the ChiCom PLAN played “TAG” for well over a Day, following his ship around…

  • B-Sabre

    I think the point raised by the issue of whether this was “innocent passage” or not is that the Chinese consider the waters territorial; therefore if the Lassen engaged in behavior that can be considered an “innocent passage” then the US was, at some level, acknowledging that China may have a valid claim to territorial waters.

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